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Nyeri Motor Services Ltd v Kanuti & 2 others (Miscellaneous Application 25 of 2023) [2023] KEHC 17734 (KLR) (18 May 2023) (Ruling)
Neutral citation:
[2023] KEHC 17734 (KLR)
Republic of Kenya
Miscellaneous Application 25 of 2023
RK Limo, J
May 18, 2023
Between
Nyeri Motor Services Ltd
Applicant
and
Mbevo Kanuti
1st Respondent
Mwaura James
2nd Respondent
Samuel Mutisya t/a Samumu Auctioneers
3rd Respondent
Ruling
1.Nyeri Motor Services Ltd the applicant herein, vide a notice of motion dated May 8, 2023 has moved this court under sections, 3A, 79G and 95 of Civil Procedure Act cap 21 and order 42, rule 6 and 51 rule 1 & 3 of Civil Procedure Rules, for the following reliefs namely: -i.Spentii.That this honourable court be pleased to extend the time and grant leave to the applicant to lodge a memorandum of appeal out of time against the judgment and decree entered against the applicant by Hon S. Mbungi in civil suit No 121 of 2013 delivered on June 13, 2022.iii.That this honourable court be pleased to stay execution of the judgment and decree in Chief Magistrate’s Court civil suit No 121 of 2013 pending the hearing and determination of the application herein.iv.That this honourable court be pleased to stay execution of the judgment and decree in Chief Magistrate’s Court civil suit No 121 of 2013 pending the hearing and determination of the intended appeal.v.That the costs of this application be in the cause.vi.Costs of this application be provided for.
2.The application is premised on the following grounds;i.That judgment was delivered on June 13, 2022 in the absence of the applicant and that the 30 days within which an appeal is to be filed had lapsed.ii.The applicant is dissatisfied with the judgment delivered on June 13, 2022 by Hon S. Mbungi and seek leave to appeal out of time.iii.That this application is timely and without unnecessary delay as the applicant came to learn of the judgment of the subordinate court on May 5, 2023.iv.That the applicant stands to suffer substantial and irreparable loss and damages as there is a likelihood that the applicant will be made to pay the sum awarded to the 1st respondent.v.That unless this application is allowed, the applicant’s intended appeal will be rendered nugatoryvi.That the applicant has a strong arguable appeal which has a high chance of success.vii.That the 1st and 3rd respondents have begun to levy execution against the applicant.
3.This application is supported by the affidavit of Tajdin Alibhai Nathoo, a director of the applicant company sworn on May 8, 2023 where he has majorly reiterated the above grounds. The same director has also filed a further supporting affidavit sworn on May 12, 2023 insisting that they were not served with notice of judgement and that if their former counsel was at fault, they should not be penalized and denied access to justice.
4.The 1st respondent opposes this application vide a replying affidavit of his counsel on Caroline Kaindi Ngala sworn on May 10, 2023. The deponent avers that the applicant has failed to advance a good enough reason for failing to file its appeal on time. Secondly, the deponent avers that the application is a nullity as the applicant’s advocate is not properly on record as the notice of change of advocates was not done properly. Thirdly, it has been averred that the court should disallow the application on the basis that the applicant has failed to offer security for due performance of the decree passed.
5.The first preliminary issue in this application is whether the applicant’s counsel is properly on record and if not whether their application is competent.
6.The 1st respondent avers that the application is a nullity and ought to be struck out as the counsel for the applicant is not properly on record.
7.The applicant avers was that he was represented by the firm of Ms Kalili and Company Advocates in the trial court vide a notice of appointment dated July 24, 2014 and filed in court the same day. A consent dated May 11, 2023 was filed in this court on May 12, 2023 by the firm of Midikira & Company Advocates indicating that the firm was taking over this matter and acting for the applicant in the place of the firm of Ms Kalili & Company Advocates.That consent was in respect to this miscellaneous application and is filed herein.
8.Order 9 rule 9 of the Civil Procedure Rules provides that change of advocate can only be effected by order of court or consent of parties provided as follows;
9.Two issues emerge from the above provisions in regard to this matteri.What mischief did the rule (order 9 rule 9 of Civil Procedure Rule) intend to cure?ii.Whether the rule applies only to a particular case or a trial finalized in the lower court or any other step taken in an appellate court.
10.This court will first look at the mischief that the rule was intended to cure and there is doubt that order 9 rule 9 of Civil Procedure Rules was introduced by parties committed to protect advocates who are retained by a client until the tail end of a case and sack them immediately judgement is delivered with a view to reaping the fruits of labour in total disregard of the labourer who is the advocate that conducted the trial. That mischief was aptly captured in the case of Connection Joint v Appollo Insurance [2006] eKLR where Fred Ochieng J (as he then was) observed as follows:-
11.The essence of that rule is the need for leave to change an advocate after judgment has been delivered. It is only meant to cater for the interests of the advocate from a mischievous client who might have the intention of not paying legal fees.
12.The rules committee in my considered view in drafting that rule had no intention of impeding or placing obstacles to a litigant interested in pursuing an appeal.
13.An appeal or proceedings in an appellate court is different because it is another court. An advocate ordinarily would require fresh instructions to pursue an appeal. In the same way, a party who had previously engaged an advocate is at liberty to proceed in person in pursuing an appeal or even engage a new advocate in the appellate court without having to comply with the provisions of order 9 rule 9 of the Civil Procedure Rules because the rules do not provide for such and it makes sense because the proceedings in an appellate court though they relate to the lower court proceedings are different. In answering the second question paraphrased above, this court makes no hesitation in finding which I hereby do that the rules under order 9 rule 9 of Civil Procedure Rules does not provide that the applicant’s counsel could only file an appeal or application to appeal in this court with the consent of the previous counsel engaged by the applicant in the lower court or through an application with notice to the former counsel.
14.The objection is a mere technicality with no legal basis.
15.In any event, even if this court had found that this application was filed by an advocate who is not properly on record or an advocate with a practicing certificate, it would not shut the door of justice on the applicant because that is an extreme action which at the end of the day would not serve the interest of substantive justice or meet the overriding objectives clearly stipulated under sections 1A & 1B of the Civil Procedure Act.
16.In the case of Kamlesh Mansukhlal Damji Pattni v Nasir Ibrahim Ali & 2 others [2005] eKLR the court when faced with an application to strike out applications filed by an advocate who had not properly filed a notice of change of advocate, the court held as follows;
17.Similarly, in the case of Richard Ncharpi Leiyagu v Independent Electoral and Boundaries Commission & 2 others [2013] eKLR the Court of Appeal stated as follows;
18.The other issue in this application is enlargement of time and stay of execution.The applicant has invoked the provision of order 42 rule 6, and order 50 rule 6 of Civil Procedure Rule in addition to section 79 G and section 95 of Civil Procedure Act in seeking these reliefs.
19.Time for filing of appeals from the sub-ordinate court is provided for under section 79 (G) of the Civil Procedure Act which provides.
20.The applicant is seeking for enlargement of time to file an appeal under order 50 rule 6 of Civil Procedure Rules which provides;
21.Extension of time to carry out any act or step in the court proceedings is a matter of discretion to the court entertaining the prayer. The principles applicable in exercising the discretion are now well established. In Nicholas Kiptoo Korir Arap Salat v Independent Electoral and Boundaries Commission & & others [2017]eKLR the principles were clearly laid out as follows:-i.Extension of time is not a right of any party. It is an equitable remedy that is only available to a deserving party at the discretion of the court;ii.A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the courtiii.Whether the court should exercise the discretion to extend time, is a consideration to be made a case- to-case basis;iv.Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;v.Whether there will be any prejudice suffered by the Respondent if the extension is granted;vi.Whether the application has been brought without undue delay
22.In the present case, judgment was delivered on June 13, 2022, the prescribed time for filing of the appeal lapsed on July 25, 2022. The applicant has attributed the delay to the fact that the judgment was delivered in the absence of their counsel and that it only became aware of the judgment after the 1st and 3rd respondent begun to levy execution proceedings.
23.The 1st respondent on his part refutes the claim insisting that the former counsel was aware of the delivery of the judgement because an email was reportedly sent to him. That contention is however, not supported. The record of the lower court, which record I have perused. There is no evidence that an email was sent to the parties in respect to judgment delivered.
24.From the court record, parties appeared in court on March 8, 2022 where the court directed that judgment would be delivered on May 27, 2022. On the same day, it is recorded that the plaintiff had filed submissions but the defendants were not submitting on the matter. There is no record of any proceedings taking place on May 27, 2022 before the trial court or on June 13, 2022 when the judgment was delivered. The only proceedings recorded in the court file are of March 15, 2023 and they are on assessment of the plaintiff’s bill of costs.
25.The provisions under order 21 rule 3 of the Civil Procedure Rules requires judgement to be delivered in the open court with notice to the parties of course it is now open for courts to deliver judgement virtually since era of covid Covid times. But the virtual delivery of the same must be done with notice to the parties with a view to protecting the rights of parties to either appeal or review and even know the outcome of their litigation. It is also not a must that judgements or rulings can only be delivered in presence of parties or counsel. But notice of judgement is mandatory for the aforestated reasons.
26.In Ngoso General Contractors Ltd v Jacob Gichunje [2005] eKLR the Court of Appeal made the following useful observations: -
27.It is also incumbent, though not a legal requirement for the opposing advocate to inform the advisory about the delivery and the contents of a judgement when the same is delivered in their absence even where prior notice had been issued.In Kisumu Paper Mills Ltd v National Bank of Kenya Ltd & 2 others (Kisumu HCC No 413 of 2001), the court held as follows:-
28.This court finds that the reasons for the delay advanced by the applicant that he was unaware about when and/if the judgement was delivered are sufficient and persuasive enough to make this court invoke its discretion by enlarging time so that the applicant can pursue his right of appeal.Respondent in that event suffers no prejudice.
29.On the stay of execution, order 42 rule 6 of the Civil Procedure Rules provide as follows:-
30.The principles applicable in granting or refusing an order of stay pending appeal or intended appeal were well illustrated in the case of Butt v Rent Restriction Tribunal (1979) where the Court of Appeal made the following observations: -The applicant has raised issues regarding ownership of the accident vehicle in the intended appeal and that issue in my view, shows that the intended appeal is not frivolous or out to buy time. I am alive to the requirement of deposit of security and find that the offer by the applicant to deposit half decretal amount in the joint names of both the advocate on record in an interest earning account meets the threshold taking all circumstances in this matter into consideration.In short, and from the foregoing, this court finds merit in the application dated May 8, 2023 the same is allowed in the following terms;i.The applicant is granted leave to lodge and serve his appeal within 14 days from today.ii.There shall be a stay of execution of the judgement and decree in Kitui CMCC No 121 of 2013 pending the determination of the intended appeal.iii.The applicant is directed to deposit half decretal amount in the joint names of both the advocate on record and in an interest earning account within 21 days from date of this ruling.iv.In default of any of the above conditions the orders herein stand discharged and the respondent will be at liberty to execute.v.Costs shall be in the intended appeal.
DATED, SIGNED AND DELIVERED AT KITUI THIS 18TH DAY OF MAY, 2023.HON. JUSTICE R. K. LIMOJUDGE
